Category: Paid Family Leave

FMLA Basics

FMLA Basics and Beyond (Webinar Recap)

On October 27, 2022, I presented a complimentary webinar entitled “FMLA Basics and Beyond”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Coverage & Eligibility
  • Qualifying Circumstances
  • Notice Obligations
  • Compliance Traps
  • Interaction with Other Laws

and much more!

President Bill Clinton signed the Family and Medical Leave Act (FMLA) into law on February 5, 1993. That means employers have been tasked with administering FMLA leaves for almost 30 years now. That doesn’t mean that compliance has become routine!

Though it has been a while since either the FMLA or its significant regulations have been amended, much else has changed in the world surrounding the leave granted by the statute. In this webinar, we take a look at applying the FMLA following a global pandemic and with an ongoing introduction of paid leave requirements that may interact with family and medical leave.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “FMLA Basics and Beyond”

The FMLA is far more involved than simply permitting employees 12 weeks of leave when they get sick or have a child. Did you know that some employees might be eligible to take up to 26 weeks off in a row? Or that employees can take FMLA leave to see a family member off to military service?

Employers with at least 50 employees must comply with the FMLA or risk significant penalties. Not sure whether your organization is covered, this webinar explains how to count employees to determine eligibility. Whether you’re familiar with applying the FMLA or not, it’s a complicated statute with tons of hidden pitfalls. We’ll discuss many of those and warn you where additional concerns may arise.

If you’re responsible for FMLA administration in your organization and haven’t reviewed the legal requirements lately, this is a great opportunity to be reminded of the many implications of employee leave requests. Do you know how the FMLA and ADA interact? What about state paid leave laws, such as sick leave and paid family leave, where they exist?

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2021 Paid Family Leave

2021 Paid Family Leave in New York

We are now in the third year of New York’s Paid Family Leave Program. It continues to get more costly for employees. But the benefits also get better. Here a primer on New York’s 2021 Paid Family Leave Program.

Employee Contributions

The New York Department of Financial Services (DFS) has announced the maximum employee-contribution rate for 2021. It will increase from 0.270% to  0.511% of the employee’s gross wages, up to an annual maximum. This maximum annual contribution will be $385.34 in 2021 compared to $196.72 in 2020.

The contribution rate increased from 0.153% to 0.270% in 2020. That changed the maximum annual contribution from $107.97 to $196.72. Thus, the maximum annual contribution has nearly doubled since last year and increased overall by 350% in just 3 years.

This means an additional annual cost of up to nearly $300 for many employees from 2018 to 2021. And additional increases remain likely each year.

2021 Paid Family Leave Benefits

But it’s not all bad news for workers. DFS also confirmed that the weekly paid family leave benefit will increase again in 2021. The weekly benefit rate increases from 60% of the employee’s average weekly wage to 67%. This percentage only applies up to the first $1,450.17 of weekly earnings. An employee who earns more than that can only receive $971.61 per week in paid family leave benefits.

The maximum leave allowance also increases from 10 weeks in 2019-2020 to 12 weeks in 2021. That is the last scheduled increase in the length of the paid leave allowance, which began at 8 weeks in 2018.

Preparing for 2021

Companies should confirm their 2021 paid family leave premiums with their insurance carriers. Then make sure that next year’s payroll will include the correct contribution rates.

If your paid family leave policy reflected specific rates for paid family leave in 2020 (or earlier), then you might want to update that component.

This is also an excellent opportunity for employers to review which employees are eligible to opt out of the paid family leave program. Employers must offer qualifying employees the chance to waive coverage (and corresponding paycheck deductions). However, the waiver automatically expires if the employee later becomes eligible for paid family leave.

Finally, employers might find that these changes coupled with unique COVID-19 issues increase the utilization of paid family leave in 2021. First, the benefits are higher and last longer, making it more financially viable for employees to take time off from work. Plus, since employees have to pay more for the program, they might feel even more entitled to use it. These factors might require employers to replace more worker hours next year or otherwise allow for lost productivity.

 

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Quarantine Leave Guidance

New York Issues COVID-19 Quarantine Leave Guidance

New York State has posted frequently asked questions, request forms, and other COVID-19 quarantine leave guidance on a State website. The information aims to assist both employers and employees in navigating the requirements and benefits under the new law. Employees are eligible for either unpaid or paid leave if they are under a precautionary or mandatory order of quarantine or isolation related to COVID-19. They might also receive enhanced Paid Family Leave and Disability Benefits.

Our earlier summary of this law enacted on March 18, 2020, is available here:

New York State Creates COVID-19 Quarantine for Employees

Quarantine Leave Guidance Highlights

Here are some of NYS’s notable clarifications under the COVID-19 quarantine leave law:

How much pay will employees receive for COVID-19 Quarantine Leave?

Public employers and private employers with over 100 employees must provide at least 14 days of paid sick leave.

Private employers with between 11 and 99 employees, and those with fewer than 10 employees but a net 2019 income of at least $1 million, must provide at least 5 sick days at the employee’s regular pay rate. These employees are entitled to a combination of benefits under Paid Family Leave and Disability Leave for the remainder of the quarantine order or isolation for a maximum of $2,884.62 per week.

Employees of private employers with less than 10 employees and net income less than $1 million last year will be entitled to compensation through the period of order or isolation through Paid Family Leave or Disability Leave Benefits with a maximum benefit amount of $2,884.62.

What is the rate of pay?

Employees on salary or with other consistent fixed pay will receive their regular pay while on paid leave.

Part-time employees and others whose compensation fluctuates must receive pay for the number of hours they would typically work during a regularly scheduled workweek. Employers can use a reasonable period of time based on the employee’s prior work history to calculate an amount that reasonably represents the employee’s typical schedule.

Will employees receive leave if the quarantine/isolation order started before the law took effect?

An employee who was placed under a quarantine or isolation order by an authorized official before this law is entitled to job-protected paid leave through the remainder of the quarantine/isolation.

Can employers require employees to use existing sick leave accruals or other accruals (paid time off) for a COVID-19 quarantine order?

Employers must provide any leave available under the law separate from another available leave.

How does an employee apply for Paid Family Leave/Disability Leave Benefits to cover a COVID-19 related absence?

The State’s quarantine leave guidance website now includes these benefits request forms:

The employee must notify their employer of the requested leave and submit a request for paid family leave to the PFL insurer within 30 days after their first day of leave.

The employee completes the employee portion of the appropriate packet and submits it to their employer for completion of the employer sections. Employees must include their quarantine or isolation order.

The employer section includes a statement on the employee’s average weekly wage and an attestation confirming that the employee is unable to work remotely.

The insurance carrier must respond to the requested leave within 18 days of receipt of the request. It must either pay the benefits or issue a denial of benefits within that time. If the insurance company does not respond within 18 days, the employee may pursue arbitration of the claim before a neutral arbitrator.

Which employees are not eligible for leave under the NYS COVID-19 Quarantine Leave Law?

Employees are not eligible under this law if they are not:

  • subject to an order of quarantine or Isolation related to COVID-19; or
  • caring for a dependent minor who is subject to such an order.

Note that employees caring for a dependent minor child who is home only because of a precautionary school closing are not eligible for this leave.

Employees under a quarantine or isolation order who are asymptomatic and are able to work from home or similar means are also not eligible.

Employees who voluntarily traveled to a country with a level 2 or 3 health notice from the Centers for Disease Control despite being aware of the travel health notice are not eligible for paid leave benefits. However, they may still take time off without pay while under a quarantine or isolation order.

NY COVID-19 Quarantine Leave and the Federal Families First Coronavirus Response Act

Separate from this New York State law, the federal government has enacted the Family First Coronavirus Response Act (FFCRA). This federal law requires employers with under 500 employees to provide two weeks of emergency paid sick leave for circumstances related to COVID-19. The federal law would apply in cases of quarantine or isolation, but also grants paid leave in other situations.

For more, read Congress: Some Employers Must Give Paid COVID-19 Leave

New York employees eligible for leave under both the State and federal laws should receive the federal benefits plus any remaining difference in what the state law provides beyond the federal law. Note, however, that the federal law does not take effect until April 1, 2020. The State law took effect immediately beginning March 18, 2020.

Putting It All Together

The combination of new laws and extreme economic circumstances make it difficult for employers to figure out what they must do when an employee needs time off due to COVID-19. It is critical to review the various potentially applicable laws separately to determine eligibility. Then, the employer must determine the interplay between all the laws that apply in a specific situation. This analysis can be challenging. The State’s quarantine leave guidance (along with the U.S. DOL’s FAQs on the FFCRA) helps provide some answers. But employers should also consult with an experienced employment attorney familiar with the intricacies of the new and pre-existing laws when addressing these situations.

 

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